Legal scholars have described the law surrounding the Constitution's Takings Clause, which prohibits the government from taking private property for public use without just compensation, as "a hopeless mess," "famously incoherent" and "a muddle."

Well, the field of takings law just got more muddled.

Last week, in Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court unanimously affirmed a decision of the Florida Supreme Court that rejected landowners' takings claims. The case involved the publicly funded restoration of a beach on top of state-owned waters in an effort to protect lives and property against hurricanes. Gulf-front property owners failed to convince the court that, under Florida law, they deserved either exclusive access to the new beach or compensation for the separation of their property from direct contact with the water.

In the immediate sense, the decision seemingly has paved the way for more than $100 million worth of planned shore protection projects along Texas' Gulf Coast, as well as like projects in many other states. However, the court proved fractured in its reasoning, issuing three separate opinions with none carrying a majority of the justices. These opinions, therefore, do not constitute binding precedent; instead, they presage continued uncertainty in takings law.

The Takings Clause long has applied only to acts of the legislative and executive branches of government. Yet in Stop the Beach, four justices announced that judicial decisions declaring that "a well established" property right "no longer exists" also may constitute a taking. Though the property owners failed to prove that the Florida Supreme Court abrogated pre-existing waterfront rights to the point of constituting such a "judicial taking" on the particular facts of this case, the theory, if supported by just one more justice, would commission future federal courts to assess the substance of state property laws, a task previously reserved for state courts. This might limit the flexibility of state courts to develop their common law incrementally in response to changing economic, social and environmental conditions. This "plurality" opinion, authored by Justice Scalia and joined by Chief Justice Roberts and Justices Alito and Thomas, provides little guidance on what is required to prove that a right is "well established," suggesting that even the existence of state court precedent is not always sufficient.

A pair of concurrences — one by Justices Breyer and Ginsburg, the other by Justices Kennedy and Sotomayor - agreed that the case was resolvable without reaching a conclusion on the validity of the judicial takings theory. Kennedy, however, did opine that courts could in certain instances reach a similar result on other grounds, namely under the Due Process Clause, which made it interesting and rather unexpected that Sotomayor, in her first significant property case on the court, joined him.

Notably, Stevens removed himself from the case because he owns a waterfront condominium in Florida. Justices need not recuse themselves solely because they own property in the locus of the case, and it is unclear whether Stevens needed to do so merely because he owns a coastal residence. Indeed, Scalia and Roberts own coastal land in North Carolina and Maine, respectively. Had all coastal property owners on the court recused themselves, which likely was unnecessary, a 4-2 majority of the court would have rejected endorsing a judicial takings doctrine; had Stevens participated with the other eight justices, his vote likely would have resulted in a 5-4 rejection of the doctrine. But with a 4-4 split on the judicial takings issue, the decision is likely to result in a surge of judicial takings claims.

Stop the Beach raises not only complicated questions of property rights, but the more basic subject of state judicial power. The judicial takings theory espoused by the plurality throws into question the relevance of prior cases asserting that governmental regulations reflecting fundamental property principles of the individual state courts do not amount to takings.

With state court decisions on state property laws possibly subject to federal takings review in their own right, the significance of important principles in Texas history, such as custom, the public trust, public necessity and nuisance abatement, long the prerogative of Texas state courts, may be compromised.

Mulvaney is an associate professor at Texas Wesleyan School of Law in Fort Worth.